Scalia’s Dissent on Arizona Case

Jun 25, 2012

RUSH: Let’s go to the phones. Who’s first? Oh! Good. Gary in Maricopa, Arizona. Great to have you, sir. Hello.

CALLER: Hi. Thank you, Rush. I just want to agree with everything you said. You know, even with Kagan being recused on this one, we couldn’t even win this. The Supreme Court threw out all the teeth, all the enforcement methods that we can use. And it’s just opening us up to lawsuits. They’re already going after Arpaio. Now any other cop that starts trying to enforce any sort of immigration thing is going to be in the same boat.

RUSH: Right.

CALLER: I think that that’s why Obama quit threatening and insulting the Supreme Court. He knew this ruling, and I think he knows that they’re gonna uphold Obamacare.

RUSH: They’re gonna uphold it, you think?

CALLER: Oh, yeah, yeah. If we can’t win with something with Kagan recused (bitter chuckle), we’re not gonna win something with her in there.

RUSH: Well, I see what you mean. You think the oral arguments, then, don’t give any indication whatsoever the way the court’s gonna rule?

CALLER: No.

RUSH: You could be totally right. Oral arguments often are meaningless wherever they happen, at whatever level of court.

CALLER: And they have to look like they’re thoughtful and challenging the people that are arguing.

RUSH: Right. Well, I want to share with you a couple of things since I have you on the phone. First off, I want to get your reaction to this. I’ve got the UK Daily Mail, and their headline is: “Blow to Obama as Supreme Court Upholds Controversial Portion of Arizona Immigration Law — The split verdict could hurt President Obama during this contentious election year since his administration was the one to bring the suit to court.” This, of course, is the provision where the cops can stop and check.

CALLER: What are the cops actually going to do if somebody’s committing a crime, or driving a car and gets pulled over for speeding and they just say they don’t have ID? How are they going to enforce it? And if I was a cop, or if I was a law enforcement official, and I started trying to do anything, I would look at what they’re doing to Arpaio and go, “Boy, oh, boy. Do I really want to have the same thing happening to me?”

RUSH: Well, that’s an excellent point. Here’s more from Scalia, by the way. Scalia actually went to the courtroom and read from his dissent. That doesn’t always happen. Sometimes dissents are just filed and quoted from, but he read a lengthy dissent from the bench. He said, among other things, “‘After this case was argued and while it was under consideration,’ he said, ‘the secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants.’

“This was a reference to the decision by the Obama administration this month to let younger immigrants — the administration estimates the number as approximately 800,000 — who came to the United States as children avoid deportation and receive working papers as long as they meet certain conditions. ‘The president has said that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration’s proposed revision of the immigration laws,’ Justice Scalia went on.

“‘Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.'” And he’s exactly right. All this was… Let’s stop and remember. All the Arizona law was was a restatement of federal law. The federal government was not enforcing the law. Arizona, therefore, wrote its own law to be able to enforce that practically mirrored the federal law, and that’s what was struck down. And Scalia doesn’t believe it.

“But to say, as the court does, that Arizona contradicts federal law by enforcing” it? “But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind.” And he’s exactly right. I tell you, I’m… Well, actually I’m not and I can’t tell you why. I was gonna say, “I’m surprised that Chief Justice Roberts joined the liberals on three of these four provisions,” but actually I’m not. But I can’t tell you why I’m not. (interruption)

I know it isn’t fair. I was saying what I was thinking, and I shoulda stopped in the middle of the thought for a second, because I can’t tell you why I’m really not surprised. (interruption) No, it’s not the pressure they’re putting on him. (interruption) No, it’s not the pressure they’re putting on him. (interruption) No, it’s nothing… (interruption) No, no, no. I was just warned, that’s all. (interruption) No, no, no. Do not try to goad me on this. I really can’t say. I’m protecting a source. I can’t say.

The cops can still call the ICE guys when they pull somebody over. But some people, like the caller said, are very concerned about history. If they’re… (interruption) Well, I know. They’re going to call the federal government which will say, “What? You got who? Deal with it yourself! We’re not coming. We’re not enforcing that.” That’s all this was. Scalia is so right on money on this. It boggles the mind. All Arizona did was write a law that mirrors the federal law that Obama was not enforcing. And the court told ’em today they can’t do that. It’s disheartening.

I don’t know if it portends anything on health care or not.

And nobody else does, either.

BREAK TRANSCRIPT

RUSH: More from Scalia in his dissent on the Arizona ruling today, claiming that it denies Arizona the right to sovereignty. Scalia said, “Today’s opinion, apÂ­proving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.” In other words, the naturalization power was given to Congress not to abrogate states’ power to exclude those they did not want, but to vindicate it.

So Scalia here is refuting the court’s claims that the stricken provisions encroached on the federal government, arguing the legislation aims only to strengthen the safety of Arizona’s borders. There’s no license to assume that officials in Arizona would use legislation to harass anybody, Scalia added. He’s right. The court basically said to Arizona that all states gotta defer to the Feds. You can’t supersede ’em. Fed’s all powerful. Federal government’s all powerful. If there are federal laws on the books and the federal government does not enforce them, you’re stuck. You can’t do anything about it. If there are the laws that say such-and-such people are not allowed in your state because they’re illegal or what have you, and the Feds don’t enforce the law, there’s nothing you can do, you gotta let ’em in.

It is mind-boggling, as Scalia said.

BREAK TRANSCRIPT

RUSH: I want to share with you even more from Justice Scalia’s dissent. “‘A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.’ Scalia goes on to argue that Arizona was in ‘complete compliance’ with federal law because it had moved to ‘protect its sovereignty.’

“‘The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.'” Now, I know a lot of people think that immigration and the border is a federal thing. And the Feds have control over it. And you can’t have different laws from state to state over immigration, border enforcement, so forth. And all that’s understandable.

But when the Feds refuse to enforce their own law, what do you do? And all Arizona did was write laws that mirrored federal law. They didn’t create any new ones. And, as Scalia says, they made them a little bit more effective. They have a problem. They have a huge problem. And the Democrats will not enforce or secure the border because they want to make voters out of these people. It’s the states that have to pay for these people! It’s maddening. I have total empathy with the people who are outraged over this.

Dundee, Michigan. This is Daniel. It’s great to have you on the program. Hello.

CALLER: Rush, how are you?

RUSH: Very good. Thank you.

CALLER: I’ll get right to the point. I just want to know if your view of this is similar to mine. It would appear to me that Obama has more in common with an illegal immigrant than he does his own citizens. In other words, what I mean is this. His decision and what he tries to promote there going against Arizona would actually help an illegal immigrant with his agenda. And I’m wondering: How long you think it will be before he wants us to remove the door locks off of our personal houses? Because, after all, if they can come into our country, which is our home, without us being able to ask ’em any questions — why they’re here, what they’re doing here, what kind of agenda they have on their mind — why wouldn’t they just be able to walk into our own houses?

RUSH: You know it’s fascinating that you ask that.

CALLER: Wouldn’t it be the same thing? Shouldn’t we have to remove all the locks?

RUSH: It is fascinating you use that analogy. I would love to be able to mention names in this story. I was out in Palm Springs a few years ago and got into a debate. There were a bunch of us at dinner. I got into a debate with a famous, well-known American TV personality about illegal immigration.

He kept saying, “Look, if people want to come to my country to better their lives, then that’s fine with me! I don’t think I should do anything keep ’em out.”

I kept coming up with every reason, every statistic to show what’s happening. Hospitals closing. Governments not able to afford health care for these people. Every stat that was showing the deterioration being caused by this.

Finally somebody said, “Okay, Mr. TV Personality. What happens if one of these people parks himself in your backyard and won’t leave?”

“Well, I just… All I can tell you is if — if — if people want to come to my country and improve their lives, I’m not gonna be the one to say they can’t come. I’m just not. I can’t do it.”

Whatever the New York Times said about the issue is what this Mr. TV Personality believed.

“Well, okay. If they park themselves in your backyard and won’t leave, what are you going to do?”

And he didn’t answer it because he lives in New York. He knew it would never happen to him. (interruption) Yeah, he’s a blithering idiot. I don’t care. It didn’t matter who he was. Take your pick. It’s true of any of them.

BREAK TRANSCRIPT

RUSH: You know in all of this, as I read these rulings, I’m still trying to figure out how the Supreme Court could decide that illegal immigrants can hold jobs. You can’t do anything about it in Arizona if they do. Because I thought we were prosecuting people that hired them. I am royally confused.